The court system and precedent

Week 2 moves from sources of law to the institutional machinery through which those sources are identified, ordered, and applied. For Durham first-year students this is not merely background constitutional knowledge. It is the beginning of legal method. In Tort, Contract, Public Law, EU Constitutional Law, and The Individual and the State, almost every serious argument depends on knowing which court decided a case, whether the proposition relied on was necessary to the decision, and whether a later court was entitled to depart from it.

The English legal system is hierarchical. Decisions of higher courts bind lower courts on points of law. This is the core of stare decisis: like cases should be decided alike, and a court normally follows a binding precedent rather than deciding afresh what justice or policy requires. But precedent is not mechanical. A case does not bind because a judge said something interesting. It binds because a rule of law, necessary for deciding the case on its material facts, was laid down by a court with authority over the later court. The lawyer’s task is therefore selective and analytical: identify the ratio decidendi, separate it from obiter dicta, understand the court hierarchy, and decide whether the precedent can be followed, distinguished, overruled, or treated as per incuriam.

The court system supplies the vertical structure of authority. At the apex is the Supreme Court of the United Kingdom, which replaced the Appellate Committee of the House of Lords in 2009. Below it, for England and Wales, stand the Court of Appeal, the High Court, the Crown Court, the county courts, magistrates’ courts, and specialist tribunals. The Judicial Committee of the Privy Council is not normally part of the domestic hierarchy, but its decisions may be highly persuasive and, in exceptional contexts, practically important. The European Court of Human Rights is not part of the English hierarchy either; under the Human Rights Act 1998, domestic courts must take account of relevant Strasbourg jurisprudence, but are not strictly bound by it.

Precedent serves several values: certainty, equality, efficiency, legitimacy, and the rule of law. It also creates risks: ossification, artificial distinguishing, excessive complexity, and judicial avoidance of responsibility. This tension is visible throughout English law. The House of Lords’ 1966 Practice Statement relaxed its former strict self-binding rule. The Supreme Court has inherited that power, but uses it sparingly. The Court of Appeal remains more tightly constrained, especially in its Civil Division, subject to defined exceptions in Young v Bristol Aeroplane. The Criminal Division has slightly greater flexibility where liberty and conviction are at stake.

In a Durham legal-method context, mastery of precedent is assessed indirectly as much as directly. A first-class answer does not merely cite Donoghue v Stevenson or Carlill v Carbolic Smoke Ball Co. It explains why the case is authoritative, what proposition it establishes, what facts matter, and how far the proposition can travel. The discipline learned here is portable across the compulsory first year: reading appellate judgments with a view to legal authority, not simply narrative outcome.

The modern doctrine of precedent is the product of institutional development rather than a single constitutional moment. Medieval royal justice gradually displaced local custom as the King’s courts developed common forms of action and recorded legal reasoning. The common law did not begin as a system of binding reported cases in the modern sense. Early Year Books recorded pleadings, arguments, and decisions, but their authority was fluid. The idea that previous decisions should guide later courts existed, yet it lacked the formal rigidity associated with nineteenth- and twentieth-century stare decisis.

Several conditions had to exist before precedent could become a disciplined doctrine. First, there had to be a reasonably stable hierarchy of courts. Secondly, there had to be reliable reporting. Thirdly, there had to be a professional legal culture capable of treating decided cases as sources of law. The development of nominate reports, and later the authorised Law Reports after 1865, made it possible to identify what had actually been decided. Without dependable reports, the doctrine of precedent would have been intellectually unstable: lawyers cannot be bound by rules they cannot reliably find.

The nineteenth century marks the consolidation of modern precedent. The Judicature Acts reorganised the superior courts and helped produce a more coherent court structure. The appellate system became clearer, and the House of Lords increasingly asserted its final appellate authority. In London Street Tramways v London County Council the House of Lords held that it was bound by its own previous decisions. The justification was certainty: citizens and lawyers should be able to arrange their affairs on the basis of settled law. But the cost was rigidity. If the final court made an error, only Parliament could correct it, unless the case could be confined or distinguished.

That rigidity became increasingly difficult to defend in a modern legal order. As social, commercial, and constitutional conditions changed, absolute self-binding risked preserving mistakes. The decisive institutional adjustment came with the 1966 Practice Statement, delivered by Lord Gardiner LC. The House of Lords declared that although precedent remained indispensable, it would depart from its previous decisions when it appeared right to do so. This did not create an ordinary appellate discretion to reconsider every issue. It created a safety valve, to be used cautiously, where adherence would impede justice or the proper development of the law.

The creation of the Supreme Court by the Constitutional Reform Act 2005 altered the institutional form but not the basic doctrine. The Supreme Court inherited the House of Lords’ appellate functions and its approach to precedent. Its separation from Parliament also made more visible the judiciary’s institutional independence. That visibility matters for legal method: when students read a Supreme Court judgment, they are reading the decision of a final court, constituted as a court rather than as a committee of the legislature.

More recent developments have complicated, rather than displaced, common-law precedent. Membership of the European Union introduced the binding authority of the Court of Justice of the European Union in matters of EU law. Brexit has required statutory rules for retained or assimilated EU case law and for departure from CJEU authority. The Human Rights Act 1998 introduced the instruction that domestic courts must take account of Strasbourg jurisprudence. Devolution has created a plural constitutional setting in which UK-wide courts and devolved legal orders interact. The result is not a simple pyramid, but a structured network of authority, with domestic hierarchy at its centre.

For Durham students, the historical point is practical. Precedent is not an antique ritual. It is a technique developed to reconcile legal continuity with institutional change. The common law claims legitimacy partly because it develops incrementally from decided disputes. To understand precedent is therefore to understand both the strength and the limitation of English legal reasoning.

The first principle is hierarchy. A decision of the Supreme Court binds all lower English courts on points of law. The Court of Appeal binds the High Court, county courts, Crown Court, magistrates’ courts, and tribunals on matters within the relevant field. High Court decisions bind inferior courts but do not bind other High Court judges in the strict sense, though they are treated with strong persuasive respect, particularly where commercial certainty is important. Decisions of county courts, magistrates’ courts, and most tribunals do not create binding precedent, although specialist tribunal decisions may be persuasive within their field.

The second principle is the distinction between binding and persuasive authority. Binding authority must be followed unless it can properly be distinguished or falls within a recognised exception. Persuasive authority may be followed because it is cogent, expert, consistent with principle, or from a respected court. Persuasive materials include decisions of coordinate courts, dissenting judgments, Privy Council decisions, decisions from other common-law jurisdictions, academic commentary, Law Commission reports, and sometimes Strasbourg jurisprudence. The language matters: a court is not free to disregard binding authority because it considers another view better; it is free to prefer one persuasive authority over another if it gives reasons.

The third principle is ratio decidendi. The ratio is the legal reason necessary for the decision on the material facts. It is not identical to the result. Nor is it every sentence in the judgment. A claimant may win because a duty of care exists, breach is proved, causation is established, and no defence applies. Each necessary legal step may form part of the ratio. Conversely, a judge may discuss broader policy, hypothetical facts, or neighbouring doctrines; those statements may be obiter. They may be influential, but they are not binding.

Identifying the ratio requires disciplined reading. Ask: what were the material facts? What issue did the court have to decide? What legal proposition was necessary to resolve that issue? Would the case have been decided the same way without that proposition? In multi-judgment appellate decisions, ask which reasoning commanded a majority. A majority may agree in the result but differ in reasoning; the binding ratio may then be narrow, fragmented, or difficult to state. This is one reason why high-quality case notes do not simply record facts and outcome. They map the reasoning.

The leading authorities show the doctrine of precedent developing as a balance between certainty and correction. London Street Tramways represents the high point of formal certainty. The House of Lords held itself bound by its own previous decisions. The rule was defensible where finality and predictability were viewed as paramount. It also suited a period in which legal certainty, especially in property and commercial matters, was treated as a central judicial value. But it created an obvious constitutional difficulty: the final appellate court could knowingly perpetuate error.

The 1966 Practice Statement altered that position without abandoning precedent. It did not say that previous decisions were merely optional. It affirmed precedent as indispensable but recognised that too rigid an adherence could produce injustice and restrict legal development. The Practice Statement remains foundational because it explains the modern Supreme Court’s power to depart from previous final appellate decisions. The power exists, but its exercise remains exceptional. Students should not treat the Supreme Court as simply free to decide every issue anew.

Young v Bristol Aeroplane is the essential Court of Appeal authority. It states the general rule that the Court of Appeal is bound by its own decisions, subject to defined exceptions. This matters in nearly every doctrinal subject. If a Court of Appeal authority is directly on point, a later Court of Appeal normally follows it even if the panel doubts its correctness. Only a higher court can ordinarily correct the error. The exceptions preserve coherence where there are conflicting Court of Appeal authorities, where a higher court has undermined the previous decision, or where the earlier case was decided per incuriam.

Davis v Johnson confirms that the Court of Appeal cannot use the Practice Statement as if it applied to it. The House of Lords rejected the idea that the Court of Appeal could depart freely from its own decisions merely because the House of Lords had adopted greater flexibility. The case is especially useful for legal-method teaching because it illustrates institutional discipline. A lower appellate court may be powerful, but its authority is still bounded by hierarchy.

R v R demonstrates common-law development through precedent in a morally and socially significant context. The House of Lords held that the marital rape exemption no longer formed part of English law. The decision is often discussed as an example of judicial development of the common law, and it raises questions about legality and retrospectivity. For present purposes, it shows that precedent is not merely conservative. Courts may reinterpret inherited common-law rules where their rationale has disappeared, though the legitimacy of doing so may be debated.

R v Jogee is a modern example of the Supreme Court correcting a long-standing error in the common law. The Court held that the law on secondary liability had taken a wrong turn in earlier decisions concerning foresight and intent. The case is important because it shows the final court using its authority to reset doctrine, while also confronting the consequences for finality in criminal convictions. It is an excellent illustration of the tension between accuracy and stability.

Willers v Joyce (No 2) is significant for the status of Privy Council decisions. The Supreme Court held that decisions of the Judicial Committee are not binding on English courts, but may be followed where they represent the considered view of judges who also sit in the Supreme Court. It also provided a mechanism by which the Privy Council may indicate that a domestic court should prefer a Privy Council decision to an otherwise binding Court of Appeal authority. This is a narrow and unusual doctrine, not a general licence to bypass the Court of Appeal.

Manchester City Council v Pinnock illustrates the position of Strasbourg authority. The Supreme Court accepted that domestic courts should usually follow a clear and constant line of European Court of Human Rights decisions, but the language is not that of strict domestic precedent. This distinction is vital in first-year Public Law and The Individual and the State. The English court system contains domestic binding hierarchies, but also receives external legal materials through statutory and constitutional gateways.

See practice questions section below.

See further reading section below.